U.S. DEPARTMENT OF THE AIR FORCE RANDOLPH AIR FORCE BASE SAN ANTONIO, TEXAS and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1840

UNITED STATES
OF AMERICA

FEDERAL LABOR
RELATIONS AUTHORITY

Office of
Administrative Law Judges

WASHINGTON,
D.C. 20424-0001

MEMORANDUM DATE:
April 20, 2010

TO: The Federal Labor
Relations Authority

FROM: SUSAN E.
JELEN

Administrative Law
Judge

SUBJECT: U.S. DEPARTMENT
OF THE AIR FORCE

RANDOLPH AIR FORCE
BASE

SAN ANTONIO,
TEXAS

RESPONDENT

AND Case No.
DA-CA-09-0109

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,

LOCAL 1840

CHARGING
PARTY

Pursuant to section
2423.34(b) of the Rules and Regulations 5 C.F.R.
§2423.34(b),

I am hereby transferring
the above case to the Authority. Enclosed are copies of my
Decision, the service sheet, and the transmittal form sent to the
parties. Also enclosed are

the transcript, exhibits
and any briefs filed by the parties.

Enclosures

UNITED STATES OF
AMERICA

FEDERAL LABOR
RELATIONS AUTHORITY

Office of
Administrative Law Judges

WASHINGTON,
D.C. 20424-0001

U.S. DEPARTMENT OF THE
AIR FORCE

RANDOLPH AIR FORCE
BASE

SAN ANTONIO,
TEXAS

RESPONDENT

AND

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1840

CHARGING PARTY

Case No.
DA-CA-09-0109

NOTICE OF TRANSMITTAL OF
DECISION

The above-entitled case
having been heard by the undersigned Administrative Law Judge
pursuant to the Statute and the Rules and Regulations of the
Authority, the undersigned herein serves her Decision, a copy of
which is attached hereto, on all parties to the proceeding on this
date and this case is hereby transferred to the Federal Labor
Relations Authority pursuant to 5 C.F.R. §2423.34(b).

PLEASE BE ADVISED that
the filing of exceptions to the attached Decision is governed by 5
C.F.R. §§2423.40-41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and
2429.27.

Any such exceptions
must be filed on or beforeMAY 24,
2010,and
addressed

to:

Office of Case Intake
& Publication

Federal Labor Relations
Authority

1400 K Street, NW.,
2ndFloor

Washington, DC
20424-0001

_______________________________

SUSAN E.
JELEN

Administrative Law
Judge

Dated: April 20,
2010

Washington,
D.C.

OALJ 10-10

FEDERAL LABOR
RELATIONS AUTHORITY

Office of
Administrative Law Judges

WASHINGTON,
D.C.

U.S. DEPARTMENT OF THE
AIR FORCE

RANDOLPH AIR FORCE
BASE

SAN ANTONIO,
TEXAS

RESPONDENT

AND

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1840

CHARGING PARTY

Case No.
DA-CA-09-0109

Michael A. Quintanilla,
Esq.

For the General
Counsel

J. Todd Hedgepeth,
Esq.

For the
Respondent

Paul D.
Palacio

For the Charging
Party

Before: SUSAN E.
JELEN

Administrative Law
Judge

DECISION

This case arose under
the Federal Service Labor-Management Relations Statute, Chapter 71
of Title 5 of the United States Code, 5 U.S.C. §7101,et. seq.(the Statute), and the Rules and Regulations of the Federal
Labor Relations Authority (the Authority/FLRA),

5 C.F.R. Part 2423.

On February 4, 2009,
the American Federation of Government Employees,

Local 1840 (Charging
Party or Union), filed an unfair labor practice charge with the
Dallas Region of the Authority against the U.S. Department of the
Air Force, Randolph Air Force

Base, San Antonio, Texas
(Respondent or Randolph AFB). (G.C. Ex. 1(a)) On October 30,
2009, the Regional Director of the Dallas Region of the Authority
issued a Complaint and

Notice of Hearing, which
alleged that the Respondent violated section 7116(a)(1) and (5) of
the Statute by refusing to bargain in good faith by refusing to
negotiate a new collective bargaining agreement with the Union.
(G.C. Ex. 1(d)) On November 24, 2009, the Respondent filed an
Answer to the complaint, in which it admitted certain allegations
while denying the substantive allegations of the complaint. (G.C.
Ex. 1(h))

A hearing was held in
San Antonio, Texas on January 19, 2010, at which time all parties
were afforded a full opportunity to be represented, to be heard, to
examine and cross-examine witnesses, to introduce evidence and to
argue orally. The General Counsel and the Respondent filed timely
post-hearing briefs, which have been fully considered.

Based upon the entire
record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions and
recommendations.

STATEMENT OF
THE FACTS

The Respondent is an
agency within the meaning of section 7103(a)(3) of the Statute.
(G.C. Ex. 1(d), (h)) The Union is a labor organization within the
meaning of section 7103(a)(4) of the Statute. (G.C. Ex. 1(d), (h))
Kim Bailey occupied the position of Labor Relations Officer at
Randolph AFB from at least June 2008 through December 2008, and, at
all times material to this matter, has been a supervisor and/or
management official within the meaning of section 7103(a)(10) and
(11) of the Statute. (G.C. Ex. 1(d), (h); Tr. 77)

Randolph AFB and the
Union are parties to a collective bargaining agreement
entitledMemorandum of
Agreement between Commander, 12thSupport Group,
Randolph Air Force Base, Texas and Local 1840, American Federation
of Government Employees, AFL-CIO,

(Jt. Ex. 1)(CBA). The
CBA was originally signed on August 6, 1993, and was rolled over at
three year intervals in 1996, 1999, 2002, and 2005. Article 8,
Duration of Agreement, states, in part:

8-2. This agreement
will remain in effect for three years from the date of its approval
by HQ AETC. On the third anniversary of its approval and each
three years thereafter, it will automatically be renewed for an
additional three year term unless, during the period between 105
and 60 days prior to the end of one of the three year terms, either
Party gives written notice to the other Party of its desire to
renegotiate the agreement. It is understood that this agreement
will be terminated if it is officially determined that the Union is
no longer entitled to exclusive recognition under Title VII.

8-3. Written notice of
either Party's desire to renegotiate the agreement will be
accompanied by the Party's written proposals for negotiation.
Ground rules for the negotiations will be drawn up by mutual
agreement and in compliance

with applicable
directives. The negotiations will be scheduled to begin
within

60 days after the
second Party receives the written notice, unless both Parties agree
to a later date. The existing agreement will remain in effect
until such time as the new agreement is signed by the Parties and
approved by HQ AETC.

(Jt. Ex. 1)

On June 9,
2008,1Vance Miller, President, AFGE, Local
1840, sent the following letter to Kim Bailey, Labor Relations
Officer:

Subject: Contract
Negotiations

Pursuant to
Memorandum of Agreement (Contract) between the American Federation
of Government Employees, AFL-CIO (AFGE-Union) Local 1840 and
12thMSG, Article 8, Section 8-2, the Union is hereby providing
notification of Intent to Re-Negotiate the Contract.

The Union desires to
Re-Negotiate all Articles of the Contract.

The Union will
provide its written proposal's (sic) and ground rules no later than
ten (10) business days prior to the start of
negotiations.

The Union request
(sic) that negotiations of the Contract to start no later than
October 1, 2008, and continue through completion.

Should there be any
questions contact the undersigned.

(G.C. Ex. 2; Tr. 45,
57-58)

The Respondent did not
furnish a written reply to the Union's demand to bargain; however,
there were ongoing discussions between Bailey and Miller regarding
the status of proposals from June through September 2008.
Specifically, Miller testified that on several occasions he asked
Bailey when he would be receiving the Respondent's ground rules
proposals; while Bailey testified that on several occasions she
asked Miller when the Respondent would be receiving the Union's
ground rules and substantive proposals. (Tr. 59-60, 64, 81, 99)

Sometime in August,
Miller contacted Paul Palacio, AFGE National Representative,
regarding his frustrations with the Respondent's lack of action.
Palacio contacted Bailey, who agreed to send him the Respondent's
ground rules proposals.2

(G.C. Ex. 3; Tr. 16-17,
19)

Miller, Palacio and Mark
Gibson, AFGE, AFL-CIO Labor Relations Specialist, met in late
September to discuss the status of the negotiations and the Union's
ground rules proposals. The Union determined at that time that it
wanted to poll its bargaining unit employees to determine what
issues were the most important to them. The Union officials
thought it would be helpful if they were allowed to have a meeting
of employees at a facility at Randolph AFB. Miller agreed to
contact Bailey for permission. According to Palacio, if Bailey
would not agree to this group meeting, he intended to add this
request to the Union's ground rules proposals, which he was still
in the process of creating. (Tr. 20-21, 61-62)

On September 30, Miller
approached Bailey to ask if the Union could meet with all the
bargaining unit employees in an auditorium to present them with a
survey that the Union created. (G.C. Ex. 6; Tr. 61-62, 80) While
Bailey did not agree with the proposed group meeting, she did agree
that the Union could present the survey to employees in their break
rooms. (G.C. Ex. 4; Tr. 62) Bailey also informed Miller that she
had not received the Union's ground rules proposals. (G.C. Ex. 4;
Tr. 63)

In a series of emails in
late September, Miller and Palacio discussed the survey and the
status of the Union's ground rules proposals. (G.C. Ex. 4)
Palacio reminded Miller of the decision to delay the ground rules
proposals until Bailey responded to their request for the group
meeting. Palacio asked Miller if the break room drop was
sufficient for his needs. (G.C. Ex. 4) On October 1, Miller
responded that the break room drop was sufficient and that the
Union was making 500 copies and would start distribution on the
next Monday (which would be Monday, October 6, 2008). (G.C. Ex. 4,
6)

According to the Union, late on October
1, Palacio emailed the Union's ground rules proposal to Bailey.
(G.C. Ex. 5) Bailey denies ever receiving this proposal from
Palacio. (Tr. 79, 86)3

On October 2, Bailey
sent the following Memorandum to Miller, titledContract Negotiations:

On 9 June 2008, AFGE
Local 1840 provided notice to this office of its intent to
re-negotiate the contract (attachment 1). In accordance with
Article 8, 8.3 "Written notice of either Party's desire to
renegotiate the agreement will be accompanied by the Party's
written proposals for negotiation." Since no proposals were
received, your intent to request to begin contract negotiations is
being returned without action. The timeframe to request full term
negotiations has expired.

If you would like to
request negotiations for mid-term bargaining, you may submit a
written request identifying the articles you wish to negotiate
along with the proposed changes. Such a request must be submitted
no earlier than 16 months after the effective date of the contract
and no later than 18 months after the effective date of the
contract.

Should you have any
questions please feel free to contact me at (210)
652-4658.

(G.C. Ex. 7)

The Union did make an
attempt to get the negotiations back on track, but was
unsuccessful. (Tr. 49-50, 95)

POSITIONS OF
THE PARTIES

General
Counsel

Counsel for the General
Counsel (GC) asserts that the Union properly submitted a memo
requesting to renegotiate the existing collective bargaining
agreement on June 9, 2008.

Respondent had a duty to
bargain and by refusing to do so, by letter dated October 1, failed
to

bargain in good faith
with the Union in violation of section 7116(a)(1) and (5) of the
Statute.

The GC argues that the
parties' CBA does not provide the Respondent with a defense to do
what would otherwise be a violation of section 7116(a)(1) and (5).
Internal Revenue Service,
Wash., D.C., 47 FLRA 1091
(1993)(IRS);Social Security
Administration,64 FLRA 199, 202 (2009).

The GC argues that the
parties were engaged in the bargaining of a new contract from June
9, 2008 through October 2, 2008. On June 9 the Union stated its
desire to renegotiate the entire agreement and proposed
negotiations begin no later than October 1. This was an obvious
ground rules proposal, which did not foreclose the possibility that
negotiations could begin earlier or later. The GC asserts that the
Respondent's argument that the October 1 date

was a "deadline" for
negotiations which, if not met, foreclosed all negotiations, is
ridiculous and should be disregarded. The GC also notes that
another ground rules proposal contained in the June 9 memo
concerned the submission of substantive proposals at least ten days
before start of negotiations. Again, Respondent now argues that
this "deadline" imposed an affirmative duty on the Union and, since
it was not met, the Respondent was free to terminate negotiations.
The GC argues that the Respondent's deadline theory is
"exceptionally unreasonable". The GC argues that substantive
negotiations were not set to begin on

October 1, and to
suggest that the parties agreed that the Union would submit written
proposals ten days prior to October 1, whether or not negotiations
were set to begin on that day or not is unsupported by the record.

The GC argues that the
Respondent unilaterally terminated negotiations on October 2. The
GC notes that, if the Respondent truly had an issue relating to the
timing of the Union's substantive proposals, it could have refused
to bargain in June. The Respondent did not do this, however, and
continued to deal with the Union on a regular basis from June
through September.

The GC specifically
argues that the Respondent's interpretation of Article
8,

Section 8-3 is
unsupported by the record evidence. The Respondent claims that the
Union was required to submit all proposals for the negotiation of a
new contract when it submitted notice of its desire to renegotiate
the parties' agreement. This interpretation ignores the realities
of collective bargaining, in particular, term bargaining, which
requires multiple exchanges of multiple proposals in a give and
take exchange.

Finally, the GC argues
that even if the judge concludes that the plain language of Article
8, Section 8-3 called for submission of any and all substantive
proposals on the entire contract when it submitted its demand to
bargain, there is substantial evidence in the record to demonstrate
that the parties agreed to a different process for this particular
negotiation.

Respondent

The Respondent argues that it did not
violate the Statute in this matter, but that at all times it
approached negotiations with a sincere resolve to reach agreement.
It received the Union's request to negotiate and agreed to a
requested extension for a "no later than"

October 1, 2008
deadline. The Respondent also agreed to the Union's request that
they provide its written proposals and ground rules no later than
10 business days prior to the start of the negotiations (thus, 10
days prior to October 1). The Respondent reminded the Union on
numerous occasions that they needed to submit substantive proposals
prior to the

October 1 deadline. The
Respondent provided sample ground rules to assist the Union in the
drafting of their proposed ground rules. The Union, however, did
nothing between June 9 and October 1.

The Respondent argues
that it is important to look at the Union's behavior and not just
the Respondent's. In order to protect their right to bargain, the
Union must timely request to bargain, submit negotiable proposals,
bargain in good faith, and timely request FSIP assistance if
impasse is reached. United
States Dep't of Labor, Wash., D.C., 60
FLRA 68, 70 (2004). While the Union did timely request to bargain,
they never submitted any negotiable proposals on any articles of
the existing agreement. It was the Union that failed to bargain in
good faith in this matter.

The Respondent argues
that the negotiations on the CBA could not start until the Union
provided written proposals on the articles of the agreement they
desired to renegotiate. See Article 8, Section 8-3. Having
received no written proposals in accordance with the Union's own
request to negotiate, the Respondent properly returned their
request to renegotiate without action.

ANALYSIS AND
CONCLUSIONS

The GC asserts that
after the Union submitted a timely notice of the reopening of the
CBA, the Respondent was obligated to negotiate a new contract with
the Union and its refusal to do so violated section 7116(a)(1) and
(5) of the Statute. Since the Respondent justifies its conduct by
an interpretation of the CBA, I am required byIRS,47 FLRA at 1103,
1110 to determine the meaning of the disputed provisions.

In itsIRSdecision, the Authority held:

[W]hen a respondent
claims as a defense to an alleged unfair labor practice that a
specific provision of the parties' collective bargaining agreement
permitted its actions alleged to constitute an unfair labor
practice, the

Authority, including
its administrative law judges, will determine the meaning of the
parties' collective bargaining agreement and will resolve the
unfair labor practice complaint accordingly.

Id.at 1103.

The Authority also
stated:

[O]nce the General
Counsel makes aprimafacieshowing that a
respondent's actions would constitute a violation of a statutory
right, the respondent may rebut the General Counsel's showing . . .
by establishing by a preponderance of the evidence that the
parties' collective bargaining agreement allowed the respondent's
actions.

Id.at 1110.

The basic facts in this
matter are clear: on June 9, the Union timely requests to reopen
the parties' collective bargaining, indicating its desire to
negotiate all of the provisions of the agreement. No substantive
proposals are included with the request, but the Union does request
that the negotiations begin no later than October 1 and that its
proposals be submitted ten days before the beginning of
negotiations. There is no written response from the Respondent.
Representatives of the Union (President and National
Representative) and the Respondent (Labor Relations Officer) do
have ongoing discussions about the negotiations, mainly regarding
when either party will receive the other's
proposals.4

In September, with the
initial October date looming, the parties increase communications.
At no time, however, does the Union ever submit substantive
proposals. Finally, in the afternoon of October 1, the Union
submits ground rules proposals, which the Respondent denies
receiving. On October 2, the Respondent returns the Union's
request to bargain over the parties' CBA, stating that it has no
duty to bargain since the Union has not followed the contract and
submitted substantive proposals.

The Respondent asserts
that its actions were allowed by Section 8-3 of the parties' CBA.
This section, as noted above, states in part:

Written notice of
either Party's desire to renegotiate the agreement will be
accompanied by the Party's written proposals for negotiation.
Ground rules

for the negotiations
will be drawn up by mutual agreement and in compliance with
applicable directives.

Using the standards and
principles for interpreting collective bargaining agreements
applied by arbitrators and the Federal courts, in addition to
Authority case law, I conclude that the CBA requires that written
proposals accompany the written notice of the desire to

renegotiate. The plain
language of the article specifically states that "written notice .
. . to renegotiate the agreementwillbe accompanied by the
Party's written proposals for negotiation." (emphasis added) I
find that this language requires the requesting Party to submit its
substantive proposals on the new collective bargaining agreement
with its request to renegotiate. It is undisputed that the Union
did not submit substantive proposals with its request to
renegotiate or at any time thereafter. See U.S. Dep't of Justice, Immigration and
Naturalization Service, Wash., D.C.,52
FLRA 256 (1996).

In support of its
position, the GC cites to the D.C. Circuit's decision inNat'l Ass'n of Gov't Employees,
Local R5-136 v. FLRA,363 F.3d 468 (D.C.
Cir. 2004)(NAGE Local
R5-136),which reversed, in part, the
Authority's decision inDep't
of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston,
S.C.,58 FLRA 432
(2003)(Johnson Med. Ctr.).
The Court stated that the Authority
relied on "an entirely untenable interpretation of the parties'
collective bargaining agreement" in finding that the Agency did not
violate the Statute. The Court found that the Union, in a mid-term
bargaining request, met the collective bargaining agreement's
requirements by meeting the deadline for requesting negotiation in
the matter and submitting a written proposal. The Court found that
the provision of the collective bargaining agreement could not
reasonably be interpreted to require the Union to put all plausible
proposals on the table within that brief period or to foreclose
negotiation of any proposal submitted
thereafter.5

The GC argues that the
contractual provision and demand to bargain in theJohnson Med. Ctr.case are analogous to Section 8-3 and the demand to bargain
in this case. InJohnson
Med. Ctr.,a unilateral change case, the
Union madea status
quorequest and was required to submit
its proposals after the review of the information provided in
response to an information request. The GC argues that, in this
case, the Union requested to negotiate all articles of the
contract, requested a date to begin negotiations on or before
October 1, 2008, and requested to submit its substantive proposals
ten days prior to when negotiations would begin. While the facts
differ, those differences do not alter the meaning that must be
taken from that case. The Circuit Court's decision contains
recognition that bargaining in the labor context necessarily
involves multiple exchanges of proposals. In both cases the
Respondent interpreted those provisions to mean all substantive
proposals had to be submitted with the request to negotiate.

I find no evidence that
the Respondent was requiring that the Union submit all of its
substantive proposals at the time it submitted its notice. The
Respondent's primary argument was that the Unionneversubmittedanysubstantive proposals, either at the time of its
request

to renegotiate the
collective bargaining agreement or at any time thereafter. While
there is

language in the G.C.
Exhibit 3 (the Respondent's sample ground rules proposals)
regarding proposals - "Neither Management or the Union will be
obligated to negotiate on any subject not included in said
proposals." - I do not find this language sufficient to establish
that the Respondent rejected the Union's request to renegotiate on
the ground that it did not furnish all of its substantive
proposals. This is not a position that the Respondent argued in
its defense. Therefore, I do not find the GC's arguments regarding
the applicability ofJohnson
Med. Ctr.persuasive.

The GC also argued that
if it was concluded that the plain language of Section 8-3 of the
CBA called for the submission of any and all substantive proposals
on the entire contract when the Union submitted its demand to
bargain, there is substantial evidence in the record to demonstrate
that the parties agreed to a different process for this particular
negotiation. Respondent admitted that it was free to reject the
Union's proposal of providing proposals ten days prior to the
beginning of negotiations, but did not do so; that it could have
raised this issue in its proposed ground rules, but did not do so;
and that it could have provided a definite date by which the Union
would submit their proposals in writing, but did not do so. In
essence the GC argued that the Respondent, by its actions between
June 9 and October 2, negates the applicability of Section 8-3 of
the CBA to allow its behavior in discontinuing negotiations and
returning the Union's request to renegotiate.

The evidence clearly
shows that the Respondent did not respond in writing to the Union's
June 9 request and did engage in discussions with the Union
regarding when its proposals, both ground rules and substantive,
would be furnished. No actual negotiations took place during this
time period. It is also clear that the Respondent accepted the
Union's proposal of October 1 as the latest date for beginning
negotiations on the new collective bargaining agreement. While the
Respondent never communicated this agreement in writing to the
Union, from the verbal communications, it appears that all of the
parties were working with a target date of October 1.

The GC asserted that the
Respondent's argument that the October 1 date was a "deadline" was
ridiculous and should be disregarded. The Respondent argued that
October 1 was a date that the Union itself proposed and the
Respondent was willing to go along with. However, by October 1,
when the Union had initially proposed bargaining should begin, the
Union had done virtually nothing. There were no substantive
proposals concerning the

various articles of the
collective bargaining agreement; and there were no formalized
ground rules proposals to get the parties to the bargaining table.
From June 9 to October 1, almost four full months, no proposals,
other than those contained in the original request to renegotiate,
were offered by the Union.

Article 8, Section 8-3
sets forth a specific procedure for the parties to follow if one of
the parties desires to renegotiate the collective bargaining
agreement. The issue then becomes whether the Respondent, when it
did not specifically demand substantive proposals

immediately after
receipt of the Union's June 9 letter, can later rely on the
language of

Section 8-3. Even
though both parties engaged in some communications regarding
proposals for the new collective bargaining agreement, there is
never any specific agreement that would change the actual language
of the parties' CBA. I find that both parties are bound by the
language of their own collective bargaining agreement and the
obligations that it imposes on them with regard to renewing and/or
renegotiating a new CBA.

The communications
between the parties between June 9 and October 1 consist mainly of
both parties trying to get the other side to submit proposals.
Section 8-3 of the CBA requires the requesting party, in this case,
the Union, to have the written notice of the desire to renegotiate
the agreement accompanied by the Party's written proposals for
negotiation. In this case, the Union failed to do so and I find
that the Respondent's actions in refusing to negotiate because no
substantive proposals had been submitted to be appropriate. The
Respondent's intervening conduct between June 9 and October 1 does
not negate its or the Union's obligations under the CBA.

I find that the
Respondent's conduct in this matter did not violate section
7116(a)(1) and (5) of the Statute. Therefore, the GC has not
established a violation of the Statute, and I recommend that the
Authority adopt the following Order: